Article 29 TFEU"...as regards free circulation of goods within the Community, products entitled to 'free circulation' are definitively and wholly assimilated to products originating in Member States".

Van Gend en Loos (1963)

postal company charged tariff on importing chemicals. contested it, paid it but then took it to court and relied on Art 30 which prohibits CDs and CEEs. Held that they were allowed to rely upon it, landmark case because it gave rise to the direct effect principle which states individuals can rely on the EU law to do with fiscal barriers to trade.

Commission v Italy ( Statistical Levy Case)

Gave definition of CEE“Any pecuniary charge, however small and whatever its designation and mode of application,which is imposed unilaterally on domestic or foreign goods by reason of the fact that they cross afrontier and which is not a customs duty in the strict sense, constitutes a charge having equivalenteffect ... even if it is not imposed for the benefit of the State, is not discriminatory or protective ineffect and if the product on which the charge is imposed is not in competition with the domesticproduct”.

Gingerbread Case & Diamantarbeiters

Article 30 catches both protectionist and non-protectionist charges

A v Ville de Seraing 2006

The requirement that the charge must be imposed on goods by reason of the fact that they cross a frontier - the charging even must be the importation/ exportation of goods from/to another Member State. Art 30 applies to charges levied at the frontier.

Comm v Germany 1988

the Courtrecognised that a charge can be lawful in 3 circumstances:(a) If it constitutes payment for genuine administrative services rendered to theimporter/exporter, of a sum in proportion to the service (“fees for services”)(b) If it constitutes payment for inspections required by EU law (“fees forinspections”)(c) If it relates to a general system of internal dues applied systematically andin accordance with the same criteria to domestic products and importedproducts alike. In other words, if it falls within the scope of Article 110TFEU (“internal taxation”)

Comm v Germany 1988

Fees for services:The payment must be consideration for a genuine service of direct effect to the importer or exporter-must not be consideration for a service which benefits the public as a whole

Commission v Belgium (warehousing) 1983

the Court noted that Article 30 TFEU will not apply if the national court considers that “the charge in question is the consideration for a service actually rendered to theimporter and is of an amount commensurate with that service”.

Bauhuis v Netherlands 1977

Fees for inspection:Where EU legislation requires an inspection to be undertaken by a State, thenational authorities can impose a charge in order to cover the costs of thatmandatory inspection

Comm v Belgium 1984

Where EU legislation permits an inspection to be undertaken by a State, thenational authorities cannot recover any fees charged from the traders

Conditions that must be satisfied so that inspection fees do not constitute a CEE:Commission v. Germany, [1988]

(a) they do not exceed the actual costs of the inspections in connection withwhich they are charged(b) the inspections in question are obligatory and uniform for all the productsconcerned in the EU(c) they are prescribed by EU law in the general interest of the EU(d) they promote the free movement of goods, in particular by neutralisingobstacles which could arise from unilateral measures of inspection adopted inaccordance with Article 36 TFEU

Will a charge that represents the levying of what is genuinely internal taxation constitute a charge having an equivalent effect?

Internal TaxationIt will not. Kapniki 2000:“It is settled case law that the essential feature of a charge having equivalent effect to acustoms duty which distinguishes it from an internal tax is that the former is borne solely by aproduct which crosses a frontier as such, whilst the latter is borne by imported and domesticproducts”.

Articles 30 TFEU & Article 110 TFEU are Mutually Exclusive:

E v Ministero delle France

Article 110 TFEU

No Member State shall impose, directly or indirectly, on the products of other Member States anyinternal taxation of any kind in excess of that imposed directly or indirectly on similar domesticproducts.Furthermore, no Member State shall impose on the products of other Member States any internaltaxation of such a nature as to afford indirect protection to other products. Vertically directly effective Lutticke v H

How to distinguish between 30 and 110

Kapniki Mikhailidis v. IKA, [2000] ECR I-7145: “It is settled case law that the essential feature of a charge having equivalent effect to a customsduty which distinguishes it from an internal tax is that the former is borne solely by a product whichcrosses a frontier as such, whilst the latter is borne by imported and domestic products”.

Does the fact that a MS does not produce a specific product meant that Art 110 TFEU cannot apply?

No: Coop Co Frutta 1987

Article 110(1)Article 110(2)

Prohibits discriminatory taxation in respect of goods which are similarProhibits protectionism in the taxation of goods which are in competition

Comm v France 1980

Similar products= 'have similar characteristics and meet the same needs from the point of view of consumers'.

Is there direct discrimination on the ground of origin (nationality)?

Direct discrimination can take 3 forms: -Only the imported product is subject to the tax Lutticke v H-The imported product is taxed at a higher rate than the domestic and imported goods Haahr Petroleum 1997-If different methods are used for calculating tax for the domestic and imported goods Bobie 1976

Can Direct discrimination taxes be justified?What is the outcome if they are found to be directly discriminatory?

NOMS must equalize the tax paid by the similar products.

Is there indirect discrimination on the ground of origin (nationality)?

Humbolt 1985 brought back a powerful car, taxed, broke law because this tax only applied to foreign cars.Held, that a special tax imposed upon cars which exceeded a certain fiscal rating was contrary to Art.95 EEC when the only cars affected by the special tax were imported, in particular from other EEC States.

Can indirect discrimination be justified?

yes, objective justification

In order for the justification to be made out a number of things have to be proved:

In order for the justification to be made out a number of things have tobe proved:(1) The national interest relied on must be unconnected with the originof the product(2) The national interest must pursue an objective recognised by theEU as legitimate(3) The steps taken to protect that interest must be proportionate

If the contested taxation is found to be in violation of Art 110(1) then discrimination must be eliminated by:

(a) Either equalising the taxes imposed on domestic and imported goods; or(b) Extending a benefit enjoyed by domestic goods to imported goods.

Article 110(2) function of it:

“The function of the second paragraph of [Article110 TFEU] is to cover, in addition [to the firstparagraph], all forms of indirect tax protection in the case of products which, without being similarwithin the meaning of the first paragraph, are nevertheless in competition, even partial indirect orpotential with, certain products of the importing country” (para. 6 of the Court’s judgment inCase 168/78, Commission v. France, [1980] ECR 347)

How does the court decide whether the products are in competition?

It is basically using two ‘tests’:a) The economic test which asks whether there is cross-elasticity of demand.b) Other factors are taken into account

What happens is the 2 products are in competition?

If the Court finds that the two categories of products are in competition, then itmust consider whether the impugned tax system protects the domestic product (i.e.there is protectionism).

Is there protectionism?

Comm v Italy (Bananas )
higher rate of tax on bananas than other fruit such as apples/pears products not similar because of different characteristics but products were in competition the higher tax on bananas afforded indirect protection to home-grown fruit
Comm v UK (wine and beer)
The Court of Justice has used a number of different tests to determine whether goods are in competition. Sometimes the Court has applied an economic test based on the cross elasticity of demand. However the Court will also take a range of other factors into account.
The best way to explain the way the Court has approached this issue is to look at the case of Commission v UK.
The facts are as follows:
In the late 1970s the UK government imposed a higher rate of tax on wine than it did on beer. Wine was taxed at £3.25 a gallon whereas beer was taxed at 61p a gallon. In terms of production it was clear that the veast majority of wine consumed in the UK was produced in France Germany and Italy wheras beer was largely made in the UK. The Commission challenged this arguing UK was in braech of Art 90.
The UK argued that the products were neither similar under art 90(1) or in competition with one another under art 90(2).
The ECJ agreed that the producst were not similar in view of the different manufacturing processes and the natural properties of the respective drinks.
However the ECJ held that the products were in competition with one another and thus UK had breached Art 90”92). The reasoning is as follows:
The Court considered whether consumers would substitute one product for another- that is drink wine instead of beer. The Court didn’t just consider whether existing consumers would substitute the producst but also whether future future consumers could substitute a product and stated that . Eventually the ECJ ruled that there was a comptitive relationship between beer and the most accessible wines (lightest and the cheapest)

If the contested tax is found to be in violation of Art 110(2) the MS must do what?

If the contested tax is found to be in violation of Article 110(2) TFEU the MemberState must remove the protective effect from its taxation scheme.What is required is that the protectionism enjoyed by the domestic goods must beremoved so that the tax reflects the objective differences between the products.

Article 34

Quantitative restrictions on imports and all measures having equivalent effect shall be prohibitedbetween Member States. Directly effective Ianelli 1977but only vertically directly effective Vlaamse, ; Art 34 n 35 TFEU concern only public measures and not the conduct of undertakings.

R v Royal Pharmaceutical Society of Great Britain

HOWEVER, it should be noted that the Court of Justice has interpreted thenotion of “State” broadly so that not only the central government or theauthorities of a Member State are bound by Article 34 TFEU, but also bodieswhich regulate the conduct of a particular profession or which are used as amedium for the execution of a measure which is contrary to Article 34 TFEU

Commission v. France (Strawberries)

Note, also, that the State may have to take responsibility for the action ofindividuals who have been disrupting the application of Article 34 TFEU,even though the activity of the individuals is not itself caught by Article 34TFEU. In such cases, the Court rules that the failure of a Member State toact in a way which will stop individuals impeding the free movement ofgoods amounts to a violation of Article 34 TFEU read together with Article4(3) TEU.

MOREOVER, the statements made by a government official and which arecapable of impeding imports of goods from other Member States may beattributable to his Member State

Case C-470/03, AGM-COS.MET, [2007] ECR I-2749

Art 34, 30 n 110 are mutually exclusive

Ianelli:“However wide the field of application of Article [34] may be, it nevertheless does not includeobstacles to trade covered by other provisions of the Treaty ... obstacles which are of a fiscal nature orhave equivalent effect and are covered by Articles [28-30] and [110] of the Treaty do not fall within theprohibition in Article [34]”.

Art 34 includes 2 fold prohibition:

1) QR2) MEQRs

Definition of QR

Geddo v Ente 1973“... measures which amount to a total or partial restraint of, according to thecircumstances, imports, exports or goods in transit”.

Henn v Darby 1980

Total Restraint:“It is clear that this provision [Article 34 TFEU] includes a prohibition on imports inasmuch as this is the most extreme form of restriction”.completely banned the porn coming in, was contrary but they could reject as a public morality thing.

Definition of MEQR

Dassonville Formula:“All trading rules enacted by Member States which are capable of hindering, directlyor indirectly, actually or potentially, intra-Community trade are to be considered asmeasures having an effect equivalent to quantitative restrictions”NOTE: Although in Dassonville the Court refers to “trading rules”, the Court in itssubsequent case-law, and consistently with the actual wording of Article 34 TFEU,has replaced the phrase “trading rules” with the broader word “measures”. And incertain cases, the Court went even further and ruled that even measures of a nonlegally-binding nature can be caught by Article 34 TFEU, if they impede inter-statetrade (see “Buy Irish” case and AGM-COS.MET, mentioned above)In Belgium there was a rule preventing the sale of products such as scotch whisky, without a certificate of authenticity. The trader had purchased his whisky in France, where no such measure existed, therefore he made his own certificate of authenticity. The trader was accused of forging the certificate, and was held by the Belgian court to be in breach of the law. The trader argued that this represented a quantitative restriction on trade, which would be in breach of Article 28 EC of the Treaty of Rome. The Belgian court therefore referred the case to the European Court of Justice as is permitted under Article 267 of the TFEU (at the time 234 EC).
The court held that the Belgian legislation requiring the certificate of authenticity represented a measure having equivalent effect of restricting trade, and was in breach of article 28 of the Treaty. The restriction meant that it was perfectly possible for a French seller of Scotch whisky to sell the whisky, whilst a short distance away in Belgium, a trader selling the same whisky would be subject to restrictions which would effectively create a restriction on their ability to compete with the French trader.
The court stated:
"All trading rules enacted by Member States which are capable of hindering, directly or indirectly, actually or potentially, intra-Community trade are to be considered as measures having an effect equivalent to quantitative restrictions"
Horspool and Humphreys note that this decision could include a "huge" range of restrictions[2], and that the court has sought to limit the range of the Dassonville decision, in cases such as Cassis de Dijon, which was decided a few years later.

distinctly applicable measures

(measures that are applicable only to non-domestic imports/exports)Different burden in law + Different burden in fact=Distinctly applicable measure=Direct discrimination on the ground of origin of the products(= direct discrimination against imported products [aka de jurediscrimination])Distinctly applicable measures can only be justified under the Article36 TFEU derogations (“the Treaty derogations”)(Case 113/80, Commission v. Ireland (Irish souvenirs), [1981] ECR 1625)

indistinctly applicable measures

(measures that are applicable to both domestic and non-domestic imports/exports).Indistinctly applicable measures are ones that, prima facie, do not favor domestic producers over importers, and whose effects are equal on both.

Same burden in law + Different burden in fact=Indistinctly applicable measure=Indirect discrimination on the ground of origin of the products(= indirect discrimination against imported products [aka de factodiscrimination])NOTE: Indistinctly applicable measures can be justified BOTHunder the Article 36 TFEU derogations (“the Treaty derogations”)AND the mandatory requirements (to be seen below

Does art.34 prohibit both indistinctly and distinctly?

yes.

Cassis de Dijon

The case concerned the sale of "cassis de Dijon" (a type of crème de cassis) in Germany by an importer and retailer (Rewe). Crème de cassis is a blackcurrant liqueur produced in France containing 15% to 20% alcohol by volume. The German government had a law stipulating that products sold as fruit liqueur should contain not less than 25% alcohol by volume. Therefore, the Bundesmonopolverwaltung für Branntwein (a section of the German Federal Ministry of Finance) told Rewe that the cassis de Dijon could not be imported into Germany and marketed as a fruit liqueur. The importer argued that this represented a quantitative restriction on trade in breach of article 28 of the Treaty of Rome.
The ECJ held that the German legislation represented a measure having an effect equivalent to a quantitative restriction on imports, and that the law was in breach of article 28 of the Treaty. The court stated:
“
The concept of measures having an effect equivalent to quantitative restrictions on imports contained in article 30 [now 28] of the EEC treaty is to be understood to mean that the fixing of a minimum alcohol content for alcoholic beverages intended for human consumption by the legislation of a member state also falls within the prohibition laid down in that provision where the importation of alcoholic beverages lawfully produced and marketed in another member state is concerned.
”
The major outcome of this case is the principle of mutual recognition: the court held that there are no valid reasons why a product that is lawfully marketed in one member state should not be introduced in another member state. To soften this wide opening of the gates for intra-Community trading, the court went on to provide four mandatory requirements which might be accepted as necessary for restricting trading in addition to the fixed derogations of TFEU Art. 36 of the Lisbon Treaty:
“
...the effectiveness of fiscal supervision, the protection of public health, the fairness of commercial transactions, and the defence of the consumer.
”

Mathot 1987

reverse discrimination is not prohibited by EU law

2 principles arising from cassis de dijon

Mutual recognition14. “.... There is therefore no valid reason why, provided that they havebeen lawfully produced and marketed in one of the Member States,alcoholic beverages should not be introduced into any other Member State;the sale of such products may not be subject to a legal prohibition on themarketing of beverages with an alcohol content lower than the limit set bythe national rules”.Rule of reason/Mandatory requirements8. “In the absence of Community rules it is for the Member States toregulate all matters relating to the production and marketing of alcohol ontheir own territory.Obstacles to movement within the Community resulting from disparitiesbetween national laws relating to the marketing of the products in questionmust be accepted in so far as those provisions may be recognised as beingnecessary in order to satisfy mandatory requirements relating in particular tothe effectiveness of fiscal supervision, the protection of public health, thefairness of commercial transactions and the defence of the consumer”.

1. Race to the bottom?2. Reduction in consumer protection and other non-economic interests? – Toomuch emphasis on negative integration and, often, as a result of this, completederegulation3. Perhaps, over-intrusion of EU law into national regulatory autonomysince the Dassonville formula read together with Cassis de Dijon blurredthe outer boundaries of EU law. Should equal burden rules be caught byArticle 34 TFEU? Where does this branch of EU law stop?Note: There is no de minimis rule applicable in the context of Article 34TFEU (Joined Cases 177/82 and 178/82, Van de Haar, [1984] ECR1797) but the concept of “remoteness” is used in order to exclude from thescope of Article 34 TFEU measures whose effect is too “uncertain andindirect” (see Case C-379/92, Peralta, [1994] ECR I-3453).

The diffculties prior to keckThe case law-paw prior to keck- equal burden rules in or out?

Oebel 1981: (out)prohibited delivery of bakery products between 10 p.m. and 5.45 a.m. was challenged. that these rules did not infringe the rules against discrimination under Art.7. Nor did they breach the rules preventing indirect restrictions on exports or imports under Art.34.

Quietlynn, [1990] (out)Held, that national legislation prohibiting the sale of sex objects from shops without a licence which applied to imported and domestic products did not impede trade between member states as it was simply a rule governing the distribution of such objects. The provisions were not intended to regulate trade in the goods in the Community and therefore was not of such a nature as to impede trade. Vs.

Cinetheque (1985)Held, that Art.30 EEC did not apply to national legislation which regulated the distribution of cinematographic works by banning their simultaneous exploitation in cinemas and in video cassette form for a limited period of time, provided that (a) the ban applied equally to home-produced and imported cassettes and (b) any barriers to intra-EEC trade created thereby did not exceed what was required for ensuring that the exploitation in cinemas of cinematographic works of all origins held priority over other means of distribution. Torfaen 1989 (& the other 'sunday trading saga' B traded at one of its stores on a Sunday in the area of the plaintiff council, selling items which were not exempted from the prohibition on Sunday trading contained in the Shops Act 1950 s.47 and Sch.5. The council brought proceedings in the magistrates court alleging breach of the Act and B contended that the relevant provisions of the Act were incompatible with Art.30 of the Treaty of Rome as they were equivalent to a quantitative restriction, which had direct effect.

Held, that s.47 of the 1950 Act is not contrary to Art.30 EC as being equivalent to a quantitative restriction on imports. Such national rules were legitimate and consistent with the objectives of public interest. They were not intended to govern patterns of trade; whether their effect exceeded what was necessary to achieve their recognised aim was a matter of fact for the national courts.

The problems

 Inconsistency between the various rulings of the Court 
Uncertainty
 Mechanical application of the Dassonville formula  Danger
of supranational law encroaching on traditional rules, habits
and uses of Member State law
 Increased burden on the workload of the ECJ
 The legitimacy of the ECJ was being eroded by its degree of
involvement in judging the reasonableness of any market
regulation, something that always involves a sizeable margin of
discretionary powers and complex economic and social policy
analysis. Should the ECJ have the power to examine and, even,
require the non-application of equal-burden national measures?
 Abusive use of EC law by traders: See para. 14 of Keck: “In
view of the increasing tendency of traders to invoke Article
30 [now Article 34] of the Treaty as a means of challenging
any rules whose effect is to limit their commercial freedom
even where such rules are not aimed at products from other
Member States, the Court considers it necessary to re-examine
and clarify its case law on this matter”.

Question: What is the purpose of Article 34 TFEU?

Is Article 34 TFEU intended to liberalise inter-state trade?
OR
Is Article 34 TFEU intended to encourage the unhindered pursuit of commerce in
the individual Member States, as some traders would argue?
This question was posed by Advocate General Tesauro in Case C-292/92,
Hünermund, [1993] ECR I-6787.

What are market circumstances rules?

are those concerning who sells
a product; when a product can be sold; where a product can be sold; and how
(e.g. with a gift) a product can be sold.

Dassonville and Cassis de Dijon are sufficiently broad so as to include within
the scope of Article 34 TFEU market circumstances rules, What are the questions posed from this statement?

 Should market circumstances rules be included within the scope of
Article 34 TFEU?
 Do they impede the achievement of the aim of Article 34 TFEU?
 What is the aim of Article 34 TFEU?

The Keck formula?

Keck, Para. 16:
“However, contrary to what has previously been decided, the application to
products from other Member States of national provisions restricting or prohibiting
certain selling arrangements is not such as to hinder directly or indirectly, actually
or potentially, trade between Member States within the meaning of the Dassonville
judgment … provided that those provisions apply to all affected traders operating
within the national territory and provided that they affect in the same manner, in
law and in fact, the marketing of domestic products and of those from other
Member States”.
Keck and market access
Keck, Para. 17:
“Where those conditions are fulfilled, the application of such rules to the sale of
products from another Member State is not by nature such as to prevent their
access to the market or to impede access any more than it impedes the access of
domestic products. Such rules therefore fall outside the scope of [Article 34] of the
Treaty”

what 2 categoris of rules is keck based on?

• Measures imposing product requirements (dealt under Cassis)
• Measures regulating selling arrangements (marketing circumstances) (dealt
under Keck)
• NB. If a measure falls in neither of these two categories, it is only assessed
under Dassonville (see, for instance, Case C-421/09, Humanplasma, Judgment
of 9 December 2010)

The two categories of rules and presumptions & the burden of proof:It is clear that the rationale for the Keck formula is based in part upon thedistinction between dual-burden rules and equal-burden rules:

Keck seems to have provided a clear division of regulatory competence: the
producing State makes the initial choices about the level of regulation of product
requirements; while the importing State makes the initial choice for its territory
about the level of regulation of certain selling arrangements (sales, marketing,
distribution, and consumption).

what is a selling arrangement?

• No definition provided by the ECJ
• The Court recently summarised its case-law on what can be considered a
selling arrangement in Case C-71/02, Karner, [2004] ECR I-3025, para. 38:
“Provisions concerning inter alia the place and times of sale of certain
products and advertising of those products as well as certain marketing
methods are provisions governing selling arrangements within the meaning of
Keck and Mithouard”.

Examples of rules which have been considered by the Court to be regulating
selling arrangements

At times the classification of a national measure (indistinctly applicable
MEQR or certain selling arrangement) may prove difficult

 Case C-368/95, Familiapress, [1997] ECR I-3689.
11. ...even though the relevant national legislation is directed against a
method of sales promotion, in this case it bears on the actual content of the products,
in so far as the competitions in question form an integral part of the magazine in
which they appear. As a result, the national legislation in question as applied to the
facts of the case is not concerned with a selling arrangement within the meaning of
the judgment in Keck and Mithouard.
12. Moreover, since it requires traders established in other Member States
to alter the contents of the periodical, the prohibition at issue impairs access of the
products concerned to the market of the Member State of importation and
consequently hinders free movement of goods. It therefore constitutes in principle a
measure having equivalent effect within the meaning of Article [34] of the Treaty.
 Cases C-158 & 159/04, Alfa Vita Vassilopoulos, [2006] ECR I-8135

PROBLEMS WITH KECK

• The Court did not specify which of its previous case-law was overruled
(“contrary to what was previously decided”)
• The Court did not provide a clear definition of the term “selling arrangements”
• The distinction between product requirements and certain selling arrangements
is not clear (see Familiapress etc)
• The phrase “selling arrangements” is too narrow in that it cannot be
interpreted to include certain rules which are – obviously- harmless to interstate
trade (such as non-discriminatory restrictions on planning and building in
the green belt and non-discriminatory restrictions on use)
• The phrase “selling arrangements” is, also, sometimes too broad in that it
catches certain “dynamic” measures (such as restrictions on advertising and
therefore takes them outside the scope of Article 34 TFEU even though they
do affect inter-state trade)

The problem with dynamic selling arrangements

• Static selling arrangements: rules relating to the hours at which shops may be
open, the length of time for which people may work, or the type of premises in
which certain goods may be sold.
• Non-static or dynamic selling arrangements include the ways in which a
manufacturer chooses to market this specific product¸ through a certain form
of advertising, free offers, and the like.
The objection to taking the latter out of Article 34 TFEU is that they may
relate more closely to the definition of the product itself. Non-static selling
arrangements can form an integral aspect of the goods, in much the same way
as do rules relating to composition, labelling, or presentation.

Yet, it is clear from Keck that the Court regarded some such rules as selling
arrangements and hence outside Article 34.
E.G.
Case C-412/93, Leclerc-Siplec, [1995] ECR I-179

THE APPLICATION OF THE SECOND KECK CONDITION

Condition II of Keck: “Does not affect in the same manner, in law and in fact, the
marketing of domestic products and of those from other Member States”
Joined Cases C-34-36/95, De Agostini¸[1997] ECR I-3843
Case C-405/98, Gourmet, [2001] ECR I-1795

Commission v. Italy (mopeds) [2009]
Article 258 TFEU action brought by Commission against Italy. Question whether
Italian rules which prohibited mopeds, motorcycles, tricycles and quadricycles from
towing a trailer, were contrary to Article 34 TFEU.
Held:
The action was dismissed. The contested rules amounted to an MEQR and thus fell
within the scope of Article 34 TFEU because they hindered access to the Italian
market for trailers which were specially designed for motorcycles and were lawfully
produced and marketed in Member States other than Italy (paras. 49-58 of the
judgment). HOWEVER, they were justified by a mandatory requirement (road
safety) (paras. 59-69) and, thus, Italy can continue applying them and, thus, can
continue prohibiting mopeds, motorcycles, tricycles and quadricycles from towing a
trailer.
Reasoning:
The Dassonville formula – para. 33 of the judgment
The principles established in Cassis and Keck – paras. 34-36
Paragraph 37: “Consequently, measures adopted by a Member State the object or effect of
which is to treat products coming from other Member States less favourably are to be regarded as
measures having equivalent effect to quantitative restrictions on imports within the meaning of
Article [34 TFEU], as are the measures referred to in paragraph 35 of the present judgment. Any
other measure which hinders access of products originating in other Member States to the
market of a Member State is also covered by that concept”. (emphasis added)

Facts: This was an Article 267 TFEU reference which was made by a Swedish court
to the ECJ in the course of criminal proceedings brought by the Swedish Public
Prosecutor’s Office against Mr Mickelsson and Mr Roos for failure to comply with a
Swedish prohibition on the use of personal watercraft. The main issue on the facts
was whether Swedish regulations which provided that jet-skis may be used only in
general navigable waterways and in waters designated through rules made by the local
authority, were contrary to Article 34 TFEU.
Held: The contested rules amounted to an MEQR and thus fell within the scope of
Article 34 TFEU because they had the effect of hindering the access to the Swedish
market of personal watercraft. HOWEVER, they could be justified on a number of
grounds, provided that certain conditions were satisfied. So, Sweden can maintain
those rules provided that the conditions mentioned in para. 39 of the judgment are
fulfilled.

3rd case:Ker-Optika, Judgment of 2 December 2010, not yet reported

Facts: This was an Article 267 TFEU reference which was made by a Hungarian court
to the ECJ in the course of proceedings between Ker-Optika (a company selling
contact lenses via its Internet site) and the South Transdanubian Regional Directorate
of the national public health and medical services, concerning an administrative
decision whereby the latter prohibited Ker-Optika from selling contact lenses in
Hungary via the Internet. The decision was based on Hungarian legislation which
provided that contact lenses could only be sold in shops which specialise in the sale of
medical devices. The question that was referred, therefore, was whether national
legislation which authorises the sale of contact lenses only in shops which specialise
in the sale of medical devices and which prohibits, consequently, the sale of contact
lenses via the Internet, is contrary to Article 34 TFEU.
Held: Articles 34 and 36 TFEU preclude national legislation which authorises the
selling of contact lenses only in shops which specialise in medical devices.

Contrast paras. 16 & 17 of Keck with para. 51 of Ker-Optika

Para. 16 of Keck:
By contrast, contrary to what has previously been decided, the application to
products from other Member States of national provisions restricting or prohibiting
certain selling arrangements is not such as to hinder directly or indirectly, actually
or potentially, trade between Member States within the meaning of the Dassonville
judgment, so long as those provisions apply to all relevant traders operating within
the national territory and so long as they affect in the same manner, in law and in
fact, the marketing of domestic products and of those from other Member States.
Para. 17 of Keck:
Provided that those conditions are fulfilled, the application of such rules to the sale
of products from another Member State meeting the requirements laid down by that
State is not by nature such as to prevent their access to the market or to impede
access any more than it impedes the access of domestic products. Such rules
therefore fall outside the scope of Article [34] of the Treaty.
Para. 51 of Ker-Optika:
For that reason, the application to products from other Member States of national
provisions restricting or prohibiting certain selling arrangements is such as to hinder
directly or indirectly, actually or potentially, trade between Member States for the
purposes of the case-law flowing from Dassonville, unless those provisions apply to
all relevant traders operating within the national territory and affect in the same
manner, in law and in fact, the selling of domestic products and of those from other
Member States. The application of such rules to the sale of products from another
Member State meeting the requirements laid down by that State is by nature such as
to prevent their access to the market or to impede such access more than it impedes
the access of domestic products.

Once it is decided that a national measure is caught by Article 34 TFEU
because it is either a QR or an MEQR, the next issue is whether it is
justified. what are the 2 types of justification?

 The Treaty Derogations (Article 36 TFEU)
 The mandatory requirements (recognised, for the first time, in Cassis
de Dijon)

qrs and distinctly applicable meqrs may be justified only under what?

art 36 tfeu derogations

indistinctly applicable meqrs may be justified under what?

art 36 tfeu derogations and the madatory requirements

when determining whether a measure is justified, it is not suffiicient to point to a lefitimate non-economic aim which is acheived through the same measure it must also be what?

proved that the measure is proportionate

the article 36 derogations

The provisions of Articles 34 and 35 shall not preclude prohibitions or restrictions on imports, exports
or goods in transit justified on grounds of public morality, public policy or public security; the
protection of health and life of humans, animals or plants; the protection of national treasures
possessing artistic, historic or archaeological value; or the protection of industrial and commercial
property.
Such prohibitions or restrictions shall not, however, constitute a means of arbitrary discrimination or a
disguised restriction on trade between Member States.

In order for a national measure (a QR or an MEQR) to take precedence over the free
movement of goods and thus not become inapplicable even though it imposes an
obstacle to the free movement of goods, it must satisfy 3 requirements:

 It must serve one (or more) of the important interests that are included
on the Article 36 TFEU list (e.g. public health or public morality)
 It must be proportionate
 It must not constitute a means of arbitrary discrimination or a disguised
restriction on trade between Member States

POINTS TO REMEMBER:

• The Court has interpreted Article 36 TFEU strictly
• The burden of proof is on the national authorities to demonstrate that their
measures are suitable and necessary to give effective protection to the
interest(s) on which they rely from the Article 36 list (Case C-17/93,
Openbaar Ministerie v. Van der Veldt, [1994] ECR I-3537).
• The derogations cannot be used to serve economic objectives: Case 7/61,
Commission v. Italy (pork), [1961] ECR 317, at p. 329: Article 36 TFEU is
“directed to eventualities of a non-economic kind”. Such objectives as the
promotion of employment or investment, curbing inflation, and controlling the
balance of payments fall outside Article 36 TFEU.
• The Article 36 TFEU list is EXHAUSTIVE and has never been amended since
the original drafting of the EEC Treaty

The Court has long emphasised that the measures taken by the Member States must
not only genuinely serve the purpose for which they are intended but they must also
be proportionate to the risk presented by the import, with the burden of proving
proportionality resting with the defendant State.

The principle of proportionality comprises essentially two tests:

• A test of suitability
• A test of necessity - One important part of the “necessity” limb is the question
whether there are any other less restrictive means of producing the same result
(the most usual example are cases involving a reliance on consumer protection
where the Court says that a less restrictive alternative will be labelling -- Case
120/78, Rewe-Zentral AG v. Bundesmonopolverwaltung für Branntwein
(“Cassis de Dijon”), [1979] ECR 649); Case 178/84, Commission v. Germany
(beer), [1987] ECR 1227.

3. ARTICLE 36 TFEU VS. POSITIVE HARMONISATION

 NOTE!!!!!!!!!! A Member State can invoke the Article 36 TFEU derogations
only in the absence of Union legislation, provided that the harmonisation occupies
the field to the exclusion of Member State competence (Case 190/87, Moorman,
[1988] ECR 4689). In Case C-5/94, Hedley Lomas, [1996] ECR I-2553, para. 18,
the Court said: “recourse to Article [36] is no longer possible where Community
Directives provide for harmonisation of measures necessary to achieve the specific
objective which would be furthered by reliance upon this provision”.
See, also, pp. 704-705 of Craig and de Burca, EU Law: Text, Cases and Materials
(Oxford, OUP, 2008).

4. THE DEROGATIONS AND THE COURT’S CASE-LAW

• The Article 36 TFEU list of derogations is EXHAUSTIVE:
 Public morality
 Public policy
 Public security
 Protection of health and life of humans, animals or plants
 Protection of national treasures possessing artistic, historic or archaeological
value
 Protection of industrial and commercial property

public morality:

henn v darbyconegate

public policy

Narrow interpretation in the context of goods: Case 177/83, Ringelhan, [1984]
ECR 3651, the Court made it clear that “public policy” does not include
considerations of consumer protection.
Only relied on successfully once: Case 7/78, Thompson, [1978] ECR 2247

The public policy derogation has increasingly been invoked
UNSUCCESSFULLY by Member States to justify interference with the free
movement of goods caused by protesters. See, e.g. Case 231/83, Cullet v.
Leclerc, [1985] ECR 305.

public security

Case 72/83, Campus Oil, [1984] ECR 2727
“the aim of ensuring a minimum supply of petroleum products at all times was to be regarded as
transcending purely economic considerations”.
“It should be stated ... that petroleum products, because of their exceptional importance as an energy
source in the modern economy, are of fundamental importance for a country’s existence since not only
its economy but above all its institutions, its essential public services and even the survival of the
inhabitants depend upon them. An interruption of supplies of petroleum products, with the resultant
dangers for the country’s existence, could therefore seriously affect the public security that Article [36]
allows States to protect”.